Just when I started to think that I might have the answers regarding the NLRB’s obsession with social media, the NLRB starts changing the questions. Not that that is always a bad thing. Just ask Schulte, Roth & Zabel.
In Schulte, the charging party alleged that he was terminated for his role in employee discussions about the employer’s allegedly unlawful overtime policy. Schulte, however, contended that it had terminated the charging party for referring to his job title as "fucktard" in response to a LinkedIn invitation from a supervisor in the firm’s IT department in violation of the firm’s electronic communications policy, which prohibited using the firm’s electronic communication systems to communicate "obscene, defamatory, harassing or abusive" material to any person or entity associated with the company. (Sorry for the profanity, but I assume you already have clicked on our link to the General Counsel’s Advice Memorandum, where the word is used twice.)
In his Advice Memorandum to the Regional Director, the Board’s Associate General Counsel recommended dismissal of the charge since there was no way to argue that the charging party’s use of that word was concerted protected activity and there apparently was no evidence that the employer had any knowledge of the employee unrest regarding the overtime policy. Consistent with Knauz BMW, the Advice Memorandum concluded that because the employer’s policy was not enforced in a manner that restricted the charging party’s Section 7 rights, the discharge was valid. Certainly, this portion of the Advice Memorandum is not surprising.
What was a little more unexpected (to me at least), however, was the General Counsel’s Office’s failure to go ahead and also consider whether the policy itself was overbroad. I mean, this decision comes directly on the heels of the ALJ’s decision in Knauz BMW to find a similar policy — requiring employees to be courteous and polite — unlawful despite upholding a discharge for Facebook posts based in part on that policy. In Schulte, however, the Advice Memorandum simply states, "In any event, there is no allegation that the rule here is unlawful."
Huh? Don’t get me wrong. I’m not looking this gift horse in the mouth, but for those of us looking for some semblance of consistency from the Board on these issues, the General Counsel’s position in Schulte is a bit of a head scratcher. Granted, all of these cases are very factually dependent, but this Advice Memorandum not only seems inconsistent with Knauz BMW, it also seems contrary to the position the General Counsel’s office took in the initial Facebook firing case, American Medical Response of Connecticut, Inc., where it alleged that policies prohibiting "disparaging remarks" about the employer violated Section 7 of the NLRA. Again, I welcome this favorable outcome for employers, but going forward, prudent employers should strongly consider including a disclaimer in their social media and electronic communications policies stating that those policies will not be enforced in a manner that would interfere with employees’ rights to communicate regarding working conditions. Not a cure-all, for sure, but hopefully it will help the policies withstand NLRB scrutiny until the Board and its counsel’s office find some consistency on these issues.